What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.
In this med-mal dispute, counsel for the plaintiff produced a document that was prepared by the defendant hospital during its investigation of the underlying allegations. The defendant demanded that the document be destroyed because it was privileged pursuant to New Jersey’s Patient Safety Act (“PSA”), which stipulates that certain internal investigations at hospitals are absolutely privileged and not subject to discovery. The defendant also questioned how counsel came to possess the sensitive document. The plaintiff’s attorney claimed that he received the document in the mail from an anonymous source and didn’t know that it was privileged.
The defendants sought an order compelling return of the document and filed a motion to disqualify counsel.
The court held the attorney should not have read the document, and disqualified him pursuant to Rule of Professional Conduct 4.4(b), which provides that “a lawyer who receives a document and has reasonable cause to believe that the document has been inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, properly notify the sender and return the document to the sender.
The court held the means by which the document obtained was irrelevant. Though the court noted they did not believe the attorney had done anything “underhanded or wrong”, they nonetheless found that the attorney should have known the documents were privileged, and it was unreasonable for him to assume that the privilege was inapplicable.
This decision highlights the uncertainties that may arise concerning privilege. The Comment to Model Rule 4.4 cautions that if a lawyer knows or reasonably should know that this document was sent inadvertently, then the lawyer must promptly notify the sender in order to permit the sender to take protective measures. But, the Rules offer little guidance about next steps including whether it is permissible to read the document.
In light of this ambiguity, if you receive a document that is potentially privileged, it is wise to refer back to your state’s Rules regarding professional judgment and err on the side of caution.